At the time this article was written Mathieu
Proulx was legal advisor to the Government House Leader in the Quebec National
In December, 1982, Quebec adopted important
legislation the need for which had been felt for many years. Until then, the
Quebec legislature had been governed by the Legislature Act. an antiquated
statute dating back to 1886. That Act had been amended sporadically but had
never been seriously revised, and had ceased to correspond to the requirements
of a parliament in today's society.
The passage of the new legislation, the
National Assembly Act, must be situated in the context of parliamentary renewal
in Quebec. For a decade, a number of members of the National Assembly have
shown a lively interest in updating the rules relating to both the
institutional framework and parliamentary procedure. Their contribution has
been a valuable one, creating a receptive climate for the modernization of the
rules that govern Quebec's parliamentary institutions. The new National
Assembly Act will probably be only a first, though major, step in the current
trend to parliamentary reform.
The Act is a very important piece of legislation.
It makes the Quebec legislature subject to new organizational and operational
rules. Unlike the Standing Orders of the Assembly, which deal with the
procedures to be followed during the Assembly's deliberations, the new Act has
instituted so fundamental a framework that to a great extent it might be called
an internal constitution for Quebec.
Given the crucial importance of such
legislation, it was natural that its proposed provisions would be discussed at
length by parliamentarians. A draft bill was tabled by the Speaker on June 17,
1980. A subcommittee met twice to consider it and to make recommendations. The
draft bill was revised and reformulated. On June 22, 1982, the Government House
Leader tabled for first reading Bill 90, An Act regarding the National Assembly
of Quebec. Before second reading the bill was sent to committee for
consideration. It was even reprinted when the recognized parties agreed to
divide it into two separate pieces of legislation.
Before reviewing the main aspects of the
reform, I think it would be interesting to look at its overall orientation,
which can be seen most clearly by comparing the old Legislature Act with the
new National Assembly Act. If we do this we note that greater autonomy has been
given to the legislature with respect to the institution itself. In support of
this assertion I will touch briefly on three measures, of varying importance.
First, from now on the Assembly will appoint
its own Secretary General and his assistants, following a recommendation by the
Premier. Previously this appointment was a government prerogative. Second, the
new Act creates a National Assembly Office, which will consist of
representatives of both the government and the opposition. The Office will
replace, with increased powers, the Assembly's Internal Economy Committee,
which was made up exclusively of members of cabinet. Third, the Office will
prepare the Assembly budget estimates and will be completely tree to allocate
resources for a large number of the items comprising 75 per cent of the
Assembly's 1981-82 budget (or 88 per cent of that budget if estimates appearing
in it, but allocated to the activities of the Ombudsman or the Auditor General,
are excluded). Plainly these measures are aimed at increasing the Assembly's
administrative independence and putting a halt to the erosion of some of its
Because Canada is a constitutional monarchy,
Section 128 of the Constitution requires all members of parliaments, whether
federal or provincial, to swear allegiance to the Head of State before taking
office. Canada's Head of State is the Queen of Canada and also the monarch of
the United Kingdom. For years the oath of allegiance has been a disputed topic
in Quebec, but there was some doubt as to the right of a provincial legislature
to amend Section 128 for its own members.
The alternative formula provided in the
National Assembly Act is the addition of an oath complementary to the one in
the Canadian Constitution. This additional oath reads as follows: I [name of
the member], swear [or solemnly state] that I will be loyal to the people of
Quebec and that I will exercise my functions as a member of this Assembly
honestly and justly, respecting the Constitution of Quebec."
For some twenty years, the greater part of
the Assembly's work has been carried on in committee. The parliamentarians are
now considering amending the Assembly's standing orders to increase the role
and the mandate of the committees. After comparisons with foreign parliaments,
a smaller quorum has also been proposed: a quorum will now consist of one-sixth
of the members, including the Speaker. and of one-tenth of the members when a
parliamentary committee is sitting at the same time as the Assembly.
Committees and subcommittees will now be
allowed to sit anywhere in Quebec as long as they observe the rules of the
Assembly. Previously. standing committees had to exercise their mandate at the
Assembly itself; only special committees could sit elsewhere.
The Act sheds new light on situations that
might prevent a member from sitting. These sections of the Act specify the
situations that could constitute a conflict of interest or be incompatible with
parliamentary duties. A clarification was needed, since the old Act failed to
distinguish between the idea of ineligibility and incompatible duties and that
of conflict of interest. To make it easier for parliamentarians to interpret
these rules, the Act creates the office of legal advisor. whose role it will be
to give an opinion to any member who may request one on his situation with
regard to the Act's conflict of interest provisions.
Interpreting such provisions in regard to
personal and professional situations and the context for each case has become extremely
difficult in today's society. The role of the legal advisor will, it is hoped,
meet a genuine need felt by parliamentarians faced with difficult situations
and determined to respect the rules of probity and integrity set down in the
Act. The opinion given would be confidential unless the member in question gave
permission for it to be divulged. A member may not be accused of any
irregularity if he has been told by the legal advisor that he is not infringing
the provisions on conflict of interests or compatibility of responsibilities,
as long as the member gave the advisor a full and exact statement of the facts
of the situation.
As was mentioned, the new Act enshrines the
independence of the National Assembly by creating an Assembly Office responsible
for the Assembly's general administration and empowered to rule on a wide range
of areas. The opposition will henceforth be involved in the Assembly's internal
management decisions, since the seven members who form the Office will include
three from the opposition. The Assembly Office has been given powers that can
only be described as exceptional and uncommon. The Act provides that the
Assembly Office may override the application of any administrative act or
regulation when the goals and the exercise of the Assembly's authority could be
more effectively attained by using specially formulated rules. The Office will
have to be very careful in its use of this extraordinary power, because the Act
identifies it as an exceptional power: the management of the Assembly is to be
performed within the framework and the primacy of general laws and regulations.
Although the establishment of the Office is
an innovation, it is not a "first" for Canada. It is part of a
Canadian trend that has been observable for several years in the structures of
provincial parliaments. It should also be pointed out that unlike corresponding
European bodies, the Assembly Office will have purely administrative
responsibilities. The members of the Office will not have a voice in planning the
Assembly's work. This area will remain a government prerogative, entrusted to
and exercised by the Government House Leader.
One notable departure in the new Act is that
the Assembly has chosen to divest itself of some power to judge anyone who
infringes its rights and privileges. A member accused of having infringed a
provision of the Act will still come before his peers to answer for his conduct
and, if there are grounds, the Assembly will decide to impose one of the
penalties provided under the new Act. If the rights of the Assembly were
infringed by a third party, however, the Act gives the courts exclusive
jurisdiction to decide on a penalty. The Act divides jurisdiction on penalties
between the Assembly and the courts, depending on whether or not the accused
has parliamentary status.
This measure breaks with a time-honoured
parliamentary tradition that only the Assembly was able to assess penalties for
any infringement of its rights. Probably the reluctance of parliamentarians to
set in motion the mechanisms to bring before them a citizen accused of such an
infringement and the doubts of many commentators as to the impartiality of such
a procedure have convinced members to renounce this jurisdiction. Practice will
be the test of these new rules, which, it need hardly be said, will not be
invoked very often.
For the reform to be complete, new standing
orders will have to be adopted. A parliamentary subcommittee has been empowered
to prepare the new orders, which will be the cornerstone of the current parliamentary
reform in Quebec.